STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2018-25669-C
					)
GIBSON GRAIN & SUPPLY, LLC,					)
					)
Respondent.					)

AGREED ORDER

Complainant and Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondent’s entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding, except a proceeding to enforce this order.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Gibson Grain & Supply, LLC (“Respondent”), which owns and operates a confined feeding operation with Farm ID # 3855, located at 1480 South 100 East, in Morocco, Newton County, Indiana. Respondent contracted with Skyline Ag Services, a commercial applicator (“Applicator”), to conduct land application activities on property Respondent owns located at 2471 South 100 East, Morocco, Newton County, Indiana (the “Site”).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to Indiana Code (“IC”) 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) via Certified Mail to:

Vergel Gibson, Registered Agent	Matthew Gibson, Owner
Gibson Grain & Supply, LLC	Gibson Grain & Supply, LLC
1480 South 100 East	1480 South 100 East
Morocco, Indiana 47963	Morocco, Indiana 47963

5. During an investigation including response investigations and inspections conducted on July 23, 2018; July 24, 2018; July 31, 2018; and August 21, 2018 and a record review on September 14, 2018, by representatives of IDEM, the following violations were found:

a. Pursuant to 327 Indiana Administrative Code (“IAC”) 2-1-6(a)(1), all surface waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil, or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges that do any of the following:

(A) will settle to form putrescent or otherwise objectionable deposits;

(B) are in amounts sufficient to be unsightly or deleterious;

(C) produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

(D) are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses; and

(E) are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

As noted during the investigation, Respondent’s Applicator caused a discharge to occur as a result of a mixture of cattle manure and sugar water being applied to a field causing ponding and overflow of the mixture to Narrows Ditch to Beaver Creek that caused an oily sheen, discoloration of the stream, and a low dissolved oxygen reading of <0.5.

b. Pursuant to 327 IAC 5-2-2, any discharge of pollutants into the waters of the state as a point source discharge is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.

As noted during the investigation, Respondent’s Applicator caused a discharge of cattle manure and sugar water to enter Narrows Ditch a tributary to Beaver Creek that resulted in death and damage to aquatic life.

c. Pursuant to 327 IAC 6.1-1-3(b), a land application permit is required for disposal in Indiana of any bio-solid, industrial waste product, or pollutant bearing water by application upon or incorporation into soil.

As noted during the investigation, Respondent disposed of unused candy/sugar water products into storage pit E1. IDEM contends that the unused product is considered an industrial waste product or pollutant-bearing water that when applied to the land, requires a Land Application Permit. Respondent did not have a land application permit.

d. Pursuant to 327 IAC 19-1-2(b)(2), a person may not start construction of a CFO or expansion of a CFO that increases animal capacity or manure containment capacity, or both, without obtaining the prior approval of the department.

As noted during the investigation, Respondent constructed and used an un-permitted manure storage structure west of structure E1 without obtaining the prior approval of the department.

e. Pursuant to 327 IAC 19-3-1(f), manure must be applied in such a manner as to not threaten or enter waters of the state; prevent ponding for more than twenty-four (24) hours, manure releases, and spills; and minimize nutrient leaching beyond the root zone.

As noted during the investigation, Respondent’s Applicator over applied manure, causing manure to run-off into a nearby stream resulting in a fish kill.

f. Pursuant to 327 IAC 19-4-1(a), Confined Feeding Operations must have a valid approval to operate.

As noted during the investigation, an un-permitted manure storage structure west of structure E1 was constructed and used without a valid approval.

g. Pursuant to 327 IAC 19-14-3(d), as of the effective date of this article, the following must comply with the phosphorus application rates in Table 1: (1) Large CAFOs, as defined in 40 CFR 122.23(b) that were approved for initial construction after February 13, 2003. (2) CAFOs with a NPDES permit. (3) CFOs approved for initial construction after the effective date of this article. Table 1 does not allow for any land application of manure to soils which have a phosphorous level above 200 ppm.

As noted during the investigation, Respondent’s land application resulted in phosphorus levels exceeding the acceptable level in Table 1.

h. Pursuant to 327 IAC 19-14-3(f), the following land application information must be added to the operating record as needed in accordance with the required time frames established in this article and IC 13-18-10 and must be maintained and updated in the operating record: expected crop yields; the date or dates manure, litter, or process wastewater is applied to each field; precipitation events at the time of application and for twenty-four (24) hours prior to and following application; test methods used to sample and analyze manure, litter, process wastewater, and soil; results from manure, litter, process wastewater, and soil sampling; an explanation of the basis for determining manure, litter, and process wastewater application rates; calculations showing the manure nitrogen and phosphorus to be applied to each field; total amount of nitrogen and phosphorus actually applied to each field, including documentation of calculations for the total amount applied; the method used to apply the manure, litter, or process wastewater; the date or dates of manure, litter, and process wastewater application equipment inspection; USDA soil survey maps of currently available land application sites; the type of manure applied; and a written conservation plan with an explanation of conservation practices used must be completed and implemented prior to land application on highly erodible land, if required in section 4(j) of this rule.

As noted during the investigation, Respondent’s land application records did not contain expected crop yields and calculations of agronomic rate.

i. Pursuant to 327 IAC 19-14-6(d), the monitoring activities conducted in accordance with subsection (c) must be documented and placed in the operating record.

As noted during the investigation, Respondent did not have any monitoring activity documentation in the operating record.

j. Pursuant to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment in any form that causes or would cause pollution that violates or would violate 327 IAC 2-1-6(a)(1), a rule adopted by the board under the environmental management laws.

As noted during the investigation, Respondent’s Applicator caused a discharge to occur as a result of a mixture of cattle manure and sugar water being applied to a field causing ponding and overflow of the mixture to Narrows Ditch that caused an oily sheen, discoloration of the stream, and a low dissolved oxygen reading of <0.5.

k. Pursuant to IC 13-18-4-5(a), a person may not throw, run, drain, or otherwise dispose into any of the streams or waters of this state, or cause, permit or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters, any organic or inorganic matter that causes or contributes to a polluted condition of any waters, as determined by 327 IAC 2-1-6(a)(1), a rule adopted by the board under IC 13-18-4-1 and IC 13-8-4-3.

As noted during the investigation, Respondent’s Applicator caused a discharge to occur as a result of a mixture of cattle manure and sugar water being applied to a field causing ponding and overflow of the mixture to the ditch that caused an oily sheen, discoloration of the stream, and a low dissolved oxygen reading of <0.5.

6. On July 11, 2019 an inspection was conducted at the Site. The unpermitted manure storage structure had been removed.

7, In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

II. ORDER

1. This Agreed Order shall be effective (“Effective Date”) when it is approved by Complainant or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall comply with 327 IAC 2-1-6(a)(1), 327 IAC 5-2-2, 327 IAC 6.1-1-3(b), 327 IAC 19-3-1(f), 327 IAC 19-4-1(a), 327 IAC 19-14-3(d), 327 IAC 19-14-3(f), 327 IAC 19-14-6(d), IC 13-30-2-1(1) and IC 13-18-4-5(a). Specifically, Respondent shall make all reasonable attempts to eliminate unpermitted discharges from the Site.

3. Pursuant to 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty of Thirty Thousand Dollars ($30,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund in six (6) installments. The first installment of Five Thousand Dollars ($5,000.00) shall be paid within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”. Subsequent installments of Five Thousand Dollars ($5,000.00) shall be paid within one hundred twenty (120) days of the Effective Date, two hundred and ten (210) days of the Effective Date, three hundred (300) days of the Effective Date, three hundred and ninety (390) days of the Effective Date and four hundred and eighty (480) days of the Effective Date.

4. The civil penalty is payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this action and shall be mailed to:

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room N1340

100 North Senate Avenue

Indianapolis, IN 46204

5. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Waste Tire Fund, and shall be payable to IDEM in the manner specified in Paragraph 4, above.

6. This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent. No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

7. In the event that any terms of this Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if this Agreed Order did not contain the invalid terms.

8. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

9. This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

10. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

11. Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

12. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with EPA or any other agency or entity.

13. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By:________________________				By: _________________________
	Linda McClure, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: _______________				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	________________________, 20_____.
				For the Commissioner:
				__ Signed March 18, 2020______
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality